The opinion of the court was delivered by: Judge McClure
On July 19, 2004, plaintiff-relator Rodney Repko commenced this civil action with the filing of a complaint against defendants Guthrie Clinic, P.C.; Guthrie Healthcare System, Inc.; Robert Packer Hospital; Kevin Carey; and Terence Devine. Plaintiff-relator's Third Amended Complaint*fn1 (Rec. Doc. No. 64), which sets forth a cause of action based on the False Claims Act, was filed under the qui tam provisions of the Act. These provisions authorize a private individual to bring a civil action in the name of the United States. See 31 U.S.C. § 3730(b).
On June 6, 2006, the United States filed a notice of election declining to intervene in the action. (Rec. Doc. No. 27). On June 8, 2006, we ordered that the complaint be unsealed and served upon the defendant. (Rec. Doc. No. 28). On October 6, 2006, the plaintiff-relator filed an amended complaint. (Rec. Doc. No. 29). On October 12, 2007, with defendants' permission, the plaintiff-relator filed a second amended complaint, titled Third Amended Complaint, which removed Kevin Carey as a defendant. (Rec. Doc. No. 64.)
On March 9, 2009, defendants filed a motion to compel discovery responses. (Rec. Doc. No. 154). On June 23, 2009, we denied the motion in part and granted the motion in part. (Rec. Doc. No. 167). In its motion to compel, the defendants had requested reasonable expenses and attorney's fees incurred in filing the motion, pursuant to Fed. R. Civ. P. 37(a)(5). We ordered both parties to submit briefs suggesting an appropriate amount. The defendants filed their brief on July 8, 2009. (Rec. Doc. No. 168). Plaintiff-relator filed his brief on July 20, 2009. (Rec. Doc. No. 169). On July 23, 2009, we ordered plaintiff-relator to pay defendants $5,000.00, due within thirty days. (Rec. Doc. No. 170).
On September 19, 2009, the defendants filed a motion for sanctions against the plaintiff-relator (Rec. Doc. No. 179) and a brief in support thereof (Rec. Doc. No. 180). In their motion, defendants request that this Court dismiss all of the claims asserted by the plaintiff-relator in this case or, in the alternative, bar the plaintiff-relator from introducing evidence pertaining to those issues addressed by the evidence that was allegedly withheld in an improper fashion. (Rec. Doc. No. 179 at 1). The plaintiff-relator filed a brief in opposition on September 29, 2009. (Rec. Doc. No. 181).*fn2 On October 19, 2009, the defendants filed a reply brief. (Rec. Doc. No. 182).
On November 10, 2009, the plaintiff-relator filed a "Motion Pursuant to Fed. R. Civ. P. 37(c)(1) to Bar the Use of Expert Witnesses and Their Reports Untimely Identified and Produced by Defendants." (Rec. Doc. No. 184-2). The plaintiff-relator filed a brief in support of this motion on the same date. (Rec. Doc. No. 185). On November 19, 2009, the defendants filed a brief in opposition to the plaintiff-relator's motion seeking to preclude the defendants' rebuttal experts. (Rec. Doc. No. 188). The plaintiff-relator has failed to file a reply brief.
Now, for the following reasons, we will grant the defendants' motion for sanctions in part and deny the motion for sanctions in part. In addition, we will deny the plaintiff-relator's motion seeking to preclude the defendants' rebuttal experts.
A. Defendants' Motion for Sanctions
The defendants have requested that this Court dismiss the claims raised by the plaintiff-relator or, in the alternative, bar him from introducing evidence related to those issues addressed by the evidence that was allegedly improperly withheld. (Rec. Doc. No. 179 at 1). In support of this request, the defendants point to ongoing discovery violations committed by the plaintiff-relator and the plaintiff-relator's spoliation of evidence. (Rec. Doc. No. 180 at 10-18). Plaintiff-relator contends that, as he has not violated a discovery order*fn3 , it would be improper for this Court to dismiss the Third Amended Complaint. (Rec. Doc. No. 181 at 27-30). In addition, plaintiff-relator argues that he did not engage in spoliation of the evidence. Id. at 37-38. As such, it is the plaintiff-relator's position that a dismissal of his claims against the defendants or the preclusion of particular evidence relating to the documents allegedly withheld would be improper. (Rec. Doc. No. 181 at 27-36, 39-42).
The central issue surrounding the instant motion for sanctions is the discovery concerning twelve so-called banker's boxes in the plaintiff-relator's possession. On June 23, 2009, this Court issued an order requiring, in part, that the plaintiff-relator "produce any "banker's boxes" which have not yet been produced and are responsive to Defendants' First Set of Requests for Production . . . ." (Rec. Doc. No. 167 at 16). Although the plaintiff-relator concedes that the defendants did in fact find "relevant material inadvertently not produced in March 2009," the plaintiff-relator claims to have made a good faith effort of production in March of 2009, also noting that the eventual discovery of other relevant material occurred only because he gave defendants total access to all twelve boxes in August of 2009. (Rec. Doc. No. 181 at 2). Defendants also claim that the plaintiff-relator's spoliation of evidence, documented by a video recorded by plaintiff-relator showing him sorting through documents in a dumpster, warrants dismissal of the Third Amended Complaint. (Rec. Doc. No. 180 at 15-18).
1. Dismissal of the Plaintiff-Relator's Claims
Defendants initially seek the dismissal of the Third Amended Complaint with prejudice. According to Fed. R. Civ. P. 37(b)(2)(A)(v), "[i]f a party . . . fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include . . . dismissing the action or proceeding in whole or in part . . . ." In determining whether the sanction of dismissal is appropriate, we will turn to the ...